Less than meets the eye?

When an ad purports to show a “right before your eyes” demonstration of a product in action, the visual must be a truthful representation of what it can do. If that’s not the case, both the advertiser and the ad agency can find themselves in law enforcement quicksand. That may have been news to Don Draper and his colleagues at Sterling Cooper in the early 60s, but it’s been a well-established legal tenet since then. The FTC’s complaint against Nissan North America and its ad agency, TBWA Worldwide, challenges an allegedly deceptive depiction of a Nissan Frontier’s ability to push a dune buggy up a steep incline. When it comes to demonstrations that misrepresent how a product will perform, the law draws a line in the sand that savvy advertisers would be wary of crossing.

The ad in question was an eye-popper. A dune buggy struggled to conquer a sand dune worthy of Lawrence of Arabia. A male onlooker – with apologies to “Big Lebowski” fans, let’s call him The Dude – stood in the foreground. As the dune buggy spun its wheels, The Dude yelled to the driver, “Gun it, bro.” Gun it bro did, but to no avail. Then out of nowhere, a Nissan Frontier appeared. Not only did the pickup scale the steep hill with ease, but it pushed the stuck buggy up the dune, too. The ad ended with a narrator saying “The mid-size Nissan Frontier with full-size horsepower and torque. Innovation for doers, innovation for all.”

According to the FTC, the ad had the look of a YouTube-type video captured by a smartphone. The audio picked up background chatter from amazed off-camera observers: “What’s this guy doing?” “Whoa, man. No way.” “Go! Go! Go!” “Are you kidding?” “Did you guys see that?” “Maniac!”

Notwithstanding the astonishment of The Dude and his bros, here’s what the FTC says really happened. First, both the truck and the buggy were dragged up the dune with cables. In addition, the dune was made to appear much steeper than it was through the use of camera tricks. According to the FTC’s complaint, it was a false representation because – we hate to break The Dude’s heart – the Nissan Frontier pickup can’t perform the feat shown in the ad.

FTC law banning the use of deceptive demonstrations dates back to a 1961 decision upheld by the Supreme Court. In that case, the commercial appeared to show a razor easily shaving sandpaper that had been softened with the advertiser’s shaving cream – except that the shaving cream wasn’t capable of softening sandpaper as shown. (The “sandpaper” actually turned out to be a sheet of plexiglass sprinkled with sand.) This meant that the company’s purported “demonstration” of how the shaving cream would soften a rough beard was deceptive because it misleadingly depicted how the product would perform. The FTC's settlement with Nissan reflects that same legal principle.

Here’s another point for advertisers to ponder. In the first three seconds of the Nissan ad, the phrase “Fictionalization. Do not attempt.” appeared on the screen. Clearly, the FTC didn’t think that was effective to undo the misimpression that people were watching a real Nissan pickup in action. Of course, the effectiveness of disclosures is a fact-specific analysis, but it shouldn’t surprise experienced marketers that a fleeting superscript in white letters against a sand dune didn’t meet the FTC’s “clear and conspicuous” standard. While we’re on the subject, leading off with the six-syllable word "fictionalization" – the meaning of which wasn’t entirely clear in this context – probably isn’t the most effective way to convey the message to consumers. And just what does “fictionalization” mean to consumers in this context? Does it suggest an utterly imaginary flight of fancy or something more akin to a “Law and Order” episode that changes the names, but dramatizes real events?

Another noteworthy aspect of the case: The FTC’s also filed suit against Nissan’s ad agency, TBWA. Headquartered on Madison Avenue (natch), TBWA is one of the biggest names in the business. The complaint charges that the agency knew or should have known that the claims conveyed in the ad were false or misleading. (Unlike advertisers who are strictly liable for misrepresentations, the legal standard for ad agencies is “knew or should have known.”)

The proposed settlement forbids Nissan from misrepresenting any feature of its pickups through a test, experiment, or demonstration. The order against TBWA bans similar misrepresentations for any pickup. File public comments online by the Feburary 24, 2014, deadline.

Does this case suggest there’s a legal problem with creativity in ads? Of course not. But when a visual conveys to consumers that it’s an actual demonstration of what the product can do, companies should be mindful of their obligation to substantiate their claims. Advertisers up the ante when the demonstration relates to an objective product attribute – in this case, to use the car company’s own words, “The mid-size Nissan Frontier with full-size horsepower and torque.” As the Supreme Court said in that shaving cream case, “We think it inconceivable that the ingenious advertising world will be unable, if it so desires, to conform to the Commission’s insistence that the public be not misinformed.” Who are we to disagree?

Here’s another tip for advertisers and ad agencies: Given the facts of the shaving cream decision and the Nissan case, be careful with commercials involving sand.

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